DEAR EDITOR

We appear now to have a second instance of the new UK Government disingenuously attempting to hide behind the rule of law when making controversial decisions on Israel.

In a previous letter, I highlighted the disingenuity behind the withdrawal of the UK’s objection to arrest warrant applications for Benjamin Netanyahu and Yoav Gallant before the ICC. The problem with that decision was that it was justified not on its merits, but – strangely – by the Government’s much-vaunted belief in the rule of law and separation of powers. I explained how such an intervention was not only *not* a threat to those values, but was actually a *legal right* the Government and others had – making the law a convenient but ultimately dishonest excuse.

And this is where we come to the next concerning decision. On 2 September, the Government announced it was to immediately suspend 30 (out of around 350) arms export licences to Israel. Pressed to defend its judgment, ministers yet again rushed behind legal cover. The Prime Minister told the House of Commons that this was a “legal decision, not a policy decision”, that it followed a legal review of export licences launched shortly after the new Government took office, and that “it is important that we are committed to the international rule of law”. In the House of Lords, the relevant Under-Secretary of State said: “This decision is consistent with the law we are obliged to follow.”

And yet, just as last time, this rush for legal cover is hugely problematic. The basis for the decision is the Government’s Strategic Export Licensing Criteria (SELC), which it must consider when deciding to grant, refuse or revoke arms export licences to third party arms manufacturers. The Government specifically relied on criterion 2c of the SELC for its decision, often repeating its wording verbatim: the Government will “not issue export licenses if there is a clear risk that the items might be used to commit or facilitate serious violations of international humanitarian law”. This appears to be the only criterion the Government relied upon here (albeit while claiming several factors went into it).

The problem is, in the Government’s accompanying policy paper (as many others have pointed out), no plausible link is made between “the items” under export to be used by Israel, and the possible breaches of IHL. This is because the policy paper only alleges breaches relating the provision of humanitarian aid and the treatment of detainees, and not the only plausible scenario in which the “items” could be used, i.e. military activities in armed conflict. Worse still, on that point, the paper actually *concedes*: “Despite the mass casualties of the conflict, it has not been possible to reach a determinative judgment on allegations regarding Israel’s conduct of hostilities.”

As such, the Government has not been able to decide that there is a “clear risk” of the “items” being used to seriously breach IHL, in the only plausible scenario in which such a risk can exist. And yet the licences were revoked on that test.

A valid critique of the above is that it only shows a legally flawed decision, and not a political decision. But this falls away when it is noted that the SELC are just “criteria” set by the Government. Some of these criteria, including this one, are mandatory (the Government “will not issue” licenses if…). While the criteria do exist under a legal framework provided by an Act of Parliament and secondary legislation, the application of those criteria in a particular case does not automatically bind the Government to a certain decision. The SELC are, ultimately, the Government’s *policy* on whether or not to suspend arms export licenses under the legal powers given to them by the legislation. Of course, it is prudent and correct that the Government follows its own policy, but that makes the compulsion to act only a policy-related one, not a legal one.

For these reasons, it is extremely difficult to believe anything other than that this is yet another political decision exposed naked, cowardly hiding behind a legal fig leaf. And, in conclusion, we are once again taken back to the question: why pretend it’s anything but political at all? As with the decision on ICC arrest warrants, there is nothing inherently wrong with the Government saying it took this decision for reasons of policy, and for people choosing either to support or disagree with it on its political merits. But once again, we have yet another example of ministers shying away from justifying difficult political decisions in those terms, and confronting the political consequences, good or bad, that might result.

Regards,

Naji